Mere weeks after the Capitol riots on January 6, 2021, federal agencies and prosecutors have already brought hundreds of federal criminal charges against individual participants. The FBI and DOJ are orchestrating a mammoth national campaign to identify participants, identify their individual behaviors during the riots, and review all potential charges that could be leveled against them. Criminal charges include violations of the Federal Anti-Riot Act, incitement, theft, unlawful entry, trespass, assault and battery, obstruction, property destruction, and weapons charges. The number of defendants and charges are rapidly climbing, and we anticipate that there will be criminal ramifications to the riots in the months and years to come.
Thus far, the biggest question raised by politicians, federal agencies, and attorneys about the tumultuous events at the U.S. Capitol on January 6 is whether the President of the United States can be criminally prosecuted for the riots.
Criminal Charges for President Trump
President Trump has been accused of sedition by politicians and people in the media. Historically, charges of sedition have often been misused. In England, individuals could be prosecuted even for imagining the death of a king. In 1798, Congress adopted a Sedition Act that made it a crime to criticize the government or the leaders of the United States. Several journalists were subsequently prosecuted and jailed.
Again during World War I, Congress adopted a sedition law that was in the eyes of most constitutional scholars, applied far too broadly, sweeping up legitimate questioning of the war as well as those intending to engage in illegal conduct.
After numerous decisions that respectively applied the so-called bad tendency test, the clear and present danger test, and the gravity of the evil test to speech, the Court in Brandenburg v. Ohio (1969) established that the First Amendment free speech clause protected speech (in this case a speech to an isolated Ku Klux Klan rally) that did not create an imminent threat of lawless action. When speech did create such a threat, prosecution and conviction were warranted.
After the death of five people, the destruction of property, rioters’ calls to hang Vice President Mike Pence, the intimidation of members of Congress, and the beating of police officers, it seems clear that Trump’s speech to his supporters on January 6, in which he claimed that “We won’t have a country” if Biden became president, resulted in lawless action at the U.S. Capitol. It is less clear exactly how much of this Trump intended to happen, although reports suggest that he enjoyed watching the spectacle from the comfort of the White House and that he did not respond to pleas for help from members of Congress as they were barricaded in their offices. If prosecutors brought a criminal case against him, however, laws surrounding criminal cases would require that a jury (which might have Trump supporters) would have to unanimously decide that the prosecutor had proved the case “beyond a reasonable doubt,” which is the toughest standard in the criminal justice system.
It is unlikely that President Trump would face criminal prosecution, but if he did, it is very unlikely that he would be found guilty.
Although no formal criminal charges have been brought against President Trump, he is already facing accusers in Congress through the impeachment process that began last week. The burden of proof in the impeachment process is less than the highest criminal court standard because it requires only a super-majority decision. While finding President Trump guilty in an impeachment trial is significant, it does not directly correlate to a criminal prosecution, nor does it bring relief to those affected by his actions. However, let us not overlook what could be a far easier means of obtaining legal sanction against President Trump: civil lawsuits.
Civil Claims Against President Trump
The families of the victims of the violence on Capitol Hill could bring lawsuits for civil damages. In a civil case the standard for awarding damages would involve a preponderance of evidence which is the lowest legal standard of proof. Attorneys would only have to establish that it is “more likely than not” that Trump’s intentional behavior, actions, and/or words resulted in the injuries the victims of the violence sustained. In particular, the families of the fallen Capitol Police Officers could have a strong case against President Trump for wrongful death.
Although civil court rulings may not feel as satisfying as a criminal conviction, they can be just as effective in punishing bad behavior. Think back to O.J. Simpson. The nation was completely wrapped up in his criminal prosecution and his epic defense. The “not guilty” finding led to riots and feelings that “justice” had not been done. The People lost and many felt that O.J. Simpson got away with murder. However, another court held O.J. Simpson responsible for the deaths of Nicole Brown Simpson and Ron Goldman – the civil court.
The Brown and Goldman families filed a civil wrongful death lawsuit against O.J. Simpson, and they won. The court made a legal finding that O.J. Simpson caused the death of Nicole Brown and Ron Goldman, and as such, he was liable to pay the families. Although it is unclear how much money the Brown and Goldman families ever recovered from the $33.5 million judgment against O.J. Simpson, it cannot be disputed that the judgment against him has remained as a finding of personally liability. The lawsuit effectively hampered and negatively impacted O.J. Simpson’s future career, business dealings, and earnings for the rest of his life.
Is President Trump the next O.J. Simpson?
Although it certainly is not, and cannot, be argued that President Trump personally and physically murdered the Capitol Police Officers who died during and as a result of the riots, it can certainly be argued with strong legal footing that his actions caused and/or contributed to the deaths of these officers.
A civil action for wrongful death would still involve a careful weighing and sifting of evidence, but there would be a much higher probably of success. Family members of the Capitol Police Officers could sue President Trump for wrongful death under D.C. Code Section 16-2701, which says that a person is liable for injury leading to the death of a person that was “caused by the wrongful act, neglect, or default of another person or corporation.”
There are four elements of law that must be proved in such a civil suit against the President:
- President Trump owed the victims a duty of care;
- Trump breached his duty of care;
- Trump’s actions and words caused and/or contributed to the deaths; and
- Trump’s actions caused harm and injuries to the victims.
There is not much doubt of the “injuries” to the victims as death is the ultimate injury and loss. There is also not much doubt that the President owed a duty of care to officers who were protecting him, the country, the Capitol, and democracy. The larger question that will have to be answered by a jury in a civil action is whether there was causation – whether Trump’s actions caused and/or contributed to the deaths of the officers (the third element of proof). The normal analysis for causation is, “but for” the President’s actions, would the victims have died.
In the wake of recounts and numerous court decisions that have ruled otherwise, Trump continued – prior to and during the riots – to attack the media, tout the theories that the election was stolen from him and that the vice president had the right to overturn such results, and that if he did not, the people should intervene.
Without such inflammatory and inciteful speech, there would have been no march on the Capitol, much less the pushing through police lines and assaulting officers, breaking windows, and trashing government property.
In this way, President Trump could be held responsible for his actions and role in the January 6 Capitol riots even if criminal charges or the impeachment cannot be proved against him.
An additional advantage of proceeding by civil suit against Trump is that he cannot pardon himself for such civil offenses as he leaves office. If criminal prosecution is not a possibility, one very strong and real possible remedy to obtain justice on behalf of the families who have lost loved ones is to sue Mr. Trump in civil court for wrongful death.